Sarah Palin provided a memorable quote as she ran for vice president in 2008. The concept of “drill, baby drill” is that the United States has vast resources of fossil fuel resources that remained underground, ostensibly due to the failure of the federal government to allow energy companies to drill. Much has happened since then, including an uptick in petroleum fuel production, which in large part is due to fracking.
In the cold light of day, there appears to be an upsurge of buyer’s remorse, as local communities across the United States, and not the federal government, are attempting to hold back fracking in their neighborhoods and jurisdictions. It’s one thing if your energy source is belching smoke in some forlorn part of the state; it’s quite another if it invades your hamlet, apparently. So, now frackers are getting a taste of something once reserved for landfills and wind farms.
The success, or lack thereof, of these campaigns can be demonstrated by recent court decisions. In Colorado, a court rejected one community’s attempt to ban fracking because it determined that the state had preempted local regulation of fracking by a county through its land use authority. In New York, that state’s highest court reversed a lower court’s decision and held that New York’s oil and gas statute did not preempt local home rule powers. The Pennsylvania Supreme Court also determined that state oil and gas laws did not fully preempt local governments from regulating fracking activities within their jurisdictions.
Fracking in Michigan faces similar hurdles. For example, residents of Scio Township have gone to court to block petroleum exploration activities in their neighborhood, but were disappointed when a Circuit Court judge refused to issue a preliminary injunction. While Scio Township was unsuccessful at this early stage of litigation, the Michigan Bar Journal recently published a piece that argues that local communities do have some power to regulate these types of activities. Preemption of local control, however, remains a significant hurdle for opponents when it comes to the development of natural resources in Michigan.
It may be awhile until these types of challenges work their way through the court system. Up to this point, there have been no successful challenges to fracking by Michigan local communities. Considering that many of these activities will be occurring in rural and more affluent areas, previously untouched by resource recovery operations, Michigan is only at the beginning of sorting out whether and the extent to which local communities can control fracking and similar operations within their borders.
- Senior Attorney
A senior attorney in Plunkett Cooney’s Bloomfield Hills office, Saulius K. Mikalonis leads the firm's Environment, Energy and Resources Law and Cannabis Law industry groups.
Mr. Mikalonis focuses his practice on all aspects of ...
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